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Protection from Harassment Bill

6.28 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Viscount of Oxfuird) in the Chair.]

Lord Thomas of Gresford moved Amendment No. 1:

Before Clause 1, insert the following new clause--

Identification order

(" .--(1) If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose.
(2) The justice may, after hearing the evidence of the complainant, make an identification order which--
(a) requires a constable to take a photograph of the person to whom the identification order relates or to cause such a photograph to be taken; and
(b) requires that person--
(i) to go to a specified police station at a specified time of day or between specified times of day, in order to have his photograph taken, and
(ii) to give particulars of his full name, address, date of birth and occupation to a constable.
(3) If the person to whom the identification order relates fails to comply with an identification order, a constable may arrest him without warrant in order that his photograph may be taken.
(4) The court may on the application of a person to whom an identification order relates--
(a) discharge an identification order; and
(b) order the destruction of any photograph which may have been taken and the deletion of any particulars given under subsection (2)(b)(ii) of this section.").

The noble Lord said: I am sure that Members on all sides of the Committee are determined to seek the best solution for a persistent and serious social problem. In moving the amendment, I shall speak also to the amendments grouped with it which cover a very wide

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area. I hope that Members of the Committee will forgive me if I take a little time in dealing with so many amendments in my address.

I outlined my broad criticisms of the Bill on Second Reading. But it is necessary, first, for me to look at the provisions of the Bill in more detail. I shall follow that by outlining, perhaps more constructively, an alternative framework which I commend to the Committee in the hope that it provides a better solution to the problem than that contained in the Bill. Unhappily, the Bill was rushed into the legislative programme and received very little proper consideration and very little proper critical appreciation in another place. I must express my gratitude to the noble and learned Lord the Lord Chancellor and to Home Office officials for their consideration and criticisms of my original proposals.

Any scheme must take into account a number of matters. First, that the matters of which complaint is made are likely to be otherwise lawful actions on the part of the offender--that is to say, the stalker. For example, walking along the street, standing outside someone's house, sending gifts through the post, telephoning, pestering, and so on, tend to be lawful actions. If the actions were not lawful, there would be no need for legislation. Aggressive behaviour can be dealt with under the ordinary law of common assault, which is frequently defined as a "putting in fear".

We start off by dealing with lawful actions. Any new law which is introduced to deal with the problem is to be measured not by the intention of the offender but by the effect of his conduct on the victim. Therefore, an offender may be doing something which is entirely lawful, without intending harm or insult or to cause fear or apprehension. Indeed, he may be behaving in what I described on Second Reading as a "Freddy" syndrome--in other words, believing that his advances are welcome to the person whom he is addressing. We must hesitate before criminalising such activity.

However, the prime object of such legislation must be to protect the victim. If there is a balance to be struck, it is a balance which must be weighted towards ensuring that people can live their lives unmolested. Whatever framework is adopted by the legislation, it is highly desirable that it should be accessible and that people should be able to obtain a remedy. It should also be accessible in terms of speed, of simple procedures and of cost.

I turn now to my more detailed criticisms of the Bill. The scheme under the Bill creates four separate offences, each of which is to be pursued in slightly different ways. Harassment in Clause 1 is defined as,

    "a course of conduct which amounts to harassment".

That is not much assistance to a potential offender in knowing how to govern his actions. Then, as regards actions, the Bill refers to action,

    "which he knows or ought to know amounts to harassment".

Moreover, Clause 1(2) states that he ought to know that it is harassment,

    "if a reasonable person in possession of the same information would think the course of conduct amounted to harassment".

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So, I repeat,

    "a reasonable person in possession of the same information",

as the offender--that is to say, the stalker.

Is it harassment if a victim is possessed of a vulnerable personality or is ill, disabled or lives alone or in vulnerable circumstances that the offender does not know about? Is it harassment if he does not have the information that the person concerned has that vulnerability? Nevertheless, his actions are to be judged by a "reasonable person" with his knowledge, according to Clause 1, and not simply by the effect of his conduct upon the victim.

In Clause 1(3) we see that there is reference to the fact that harassment,

    "does not apply to a course of conduct if the person who pursued it shows",

among other things, that,

    "in the particular circumstances the pursuit of the course of conduct was reasonable".

In other words, there is a statutory defence to harassment if the offender can show that in the particular circumstances,

    "the course of conduct was reasonable".

One only has to introduce words like "reasonable"--that is to say, what is reasonable and what is not--to observe that there is a huge area for argument and that court cases will be much prolonged by such discussions.

Clause 2 creates a summary offence of harassment so there is an attempt to criminalise the conduct complained of immediately. If you are guilty of harassment, then you are guilty straightaway; in other words, there is no intermediate stage. You have committed an offence and, although you may have believed that what you were doing was, first, lawful and, secondly, reasonable, objectively it was not.

Clause 3 introduces the civil remedy of injunction and compensation and the provision which orders counselling. Once criminal procedures are brought in, the victim will have to consult a solicitor, apply for legal aid, take time to start proceedings, serve the proceedings and will then have the problem of enforcing them. That is coupled in Clause 3 with the offence of breaching the injunction which is triable both ways. It means that for breaching an injunction which has been found on a civil standard of proof to be appropriate, a criminal offence has been committed.

However, what does not appear in that clause is the fact that the defendant can argue the Section 1(3) statutory defence. The criminal court would presumably be bound by the finding of the civil court made on a lower standard of proof. Therefore, under Clause 3, when the defendant who faces gaol comes to court for breaching an injunction, which has been obtained under the civil standard of proof, he is no longer able to argue that his course of conduct was reasonable. That is a defect which must be addressed, even if the scheme as set out in the Bill is maintained.

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Clause 4 creates a further criminal offence; namely, that of,

    "putting people in fear of violence",

with the statutory defence of what is or what is not reasonable being resurrected. Under the provisions of Clause 4, the defendant is entitled to argue that the pursuit of his course of conduct was reasonable,

    "for the protection of himself or another or for the protection of his or another's property".

So a fresh consideration comes into play.

Clause 5 introduces a restraining order after conviction--that is to say, a conviction that is made in the Crown Court or the magistrates' court under Clauses 2 or 4. In Clause 5 the court will stipulate the prohibited conduct. For example, if someone breaches the restraining order made after conviction he will have committed a further offence triable both ways by doing anything which he was prohibited from doing. Again, it is no longer an issue as to whether or not the offender's course of conduct was reasonable because the court has determined that it was not.

The point that I wish to make is that, even if one looks at the scheme as it appears in the Bill, there are weaknesses and flaws about the way that it is put together. Sometimes there is a statutory defence; sometimes there is not. The mixture of civil and criminal proceedings is unprecedented and will make it difficult for people to obtain remedies.

My amendments propose a simpler scheme altogether, and what I hope the Committee would regard as a constructive use of the civil and criminal jurisdiction of one court, that is to say, the magistrates' court. Subsection (1) of the proposed new clause in Amendment No. 1 refers entirely to the effect upon the complainant of the course of conduct of that other person. Subsection (1) of the proposed new clause states:

    "If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose".

There we have not a definition of harassment but a reference simply to the effect upon the victim of the course of conduct that the other person has carried out. Harassment is avoided; arguments as to what is or is not reasonable are avoided. It is left to the good sense of the justice to whom the complaint is made to decide whether the matter before him requires his intervention. There is nothing new in putting such a matter in the hands of a justice of the peace. Historically this has happened over centuries. Historically a justice has determined whether to act in his preventative role whenever he has feared a potential breach of the peace. These provisions and the problem we are concerned with here are not far from the breach of the peace position.

The rest of the proposed new clause in the amendment deals with what I have termed an identification order. There is a considerable problem with stalkers in that their identity is frequently not known. It is not possible for an individual person readily to find out who the person is who is following, pestering or telephoning that individual. There is a need to

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identify at an early stage who is responsible for the problem and, if necessary, to check that person by getting the police involved right at the beginning. The purpose of the identification order is, first, to identify the stalker; secondly, to involve the police at the beginning of the proceedings--which is not possible with a civil injunction; and, thirdly, to provide a statutory power of arrest of that person. The purpose of that arrest is not to bring the person before the court for the purposes of a criminal charge but for the purposes of taking a photograph and requiring that person to identify himself. This is not a matter of creating a criminal offence. It is a case of a policeman saying to someone, "A complaint has been made against you. You will come with me to the police station. I will take your photograph and get your particulars", and that is the end of it. If the stalker refuses to do that, a police officer is given a statutory power of arrest. That is not unprecedented. For example, if a person fails to take a breathalyser test he can be arrested and taken to a police station for the purposes of obtaining that test. Similarly, as regards an exclusion order relating to football hooligans, there is a similar problem of identifying who a football hooligan is. In that case a person can be arrested, a photograph can be taken and he must provide his identification.

The benefit of an identification order is that a person who has a complaint also has a quick remedy. The order can be made on the evidence of the complainant alone. The stalker can be warned about his conduct. There is protection for him in that he may apply for the order to be discharged if he has been wrongly accused. However, most important of all, at the stage of the identification order--when all that has been required of him is that he has his photograph taken and that he provides particulars of himself--his activities are not criminalised. He is not gaining, or adding to, a criminal record by having an order of this sort made against him. That is a first check to a person who is engaging in activity that causes fear, distress or apprehension to another person.

The second proposed new clause suggests a second step. If the identity of the stalker is known, this is perhaps the first step. The magistrate may proceed in his civil jurisdiction to make a harassment order. That is the second sort of order that these provisions set out. As regards a harassment order, the justice in the ordinary way in answer to a complaint will issue a summons for the person who has been identified, or who is known, to attend before him in a magistrates' court. Having heard the case and having heard evidence on both sides, the justice makes a harassment order as defined in the third proposed new clause. That harassment order can provide that the defendant desists forthwith from such conduct as the court specifies. The harassment order further provides that the defendant can be,

    "restrained from any conduct likely to cause distress, apprehension or fear to the complainant; be restrained from entering into or remaining in any area for such period as the court shall specify; be bound by a recognizance to attend such course of counselling".

The latter provision is at the magistrate's discretion. He may order such a course of counselling if he thinks it is appropriate. Finally, the defendant can,

    "pay compensation to the complainant".

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There is nothing in the Bill as drafted which provides for the payment of compensation.

At this stage the magistrate can order that compensation be paid in such amount as he considers to be appropriate, having regard to,

    "any evidence and any representations that are made"

to him. The harassment order will have effect,

    "for a specified period or until further order".

Again, there is a protection in that the person against whom such an order has been made can--on giving undertakings and upon payment of costs, or whatever seems to be appropriate to the magistrate--go to court and ask for the order to be discharged.

Again, however, even the harassment order does not turn the stalker into a criminal. As I said earlier, he is essentially doing something that in ordinary circumstances would be lawful and which he may not believe to be causing distress. He may believe that his actions are welcome. However, he is given a warning by a harassment order right at the beginning. He is warned that his conduct is unacceptable and that he must desist from it. It is only at that point that he becomes liable to criminal proceedings, not as under Clause 2 of the Bill as drafted where he becomes liable to such proceedings right at the beginning. However, having received a warning through the identification order and through the harassment order, the criminality provision comes into play only if he with sheer determination and intention breaches that harassment order and does something which he is prohibited from doing.

The fourth proposed new clause in the amendments creates a single criminal offence which is similar to the offence created in Clause 5 of the Bill of breach of a restraining order. It is of a similar nature. Under the fourth proposed new clause a criminal offence is occasioned by a defendant doing anything,

    "which he is prohibited from doing by a harassment order".

Therefore if a defendant follows any course of conduct which the justice has thought serious enough to include within the harassment order and which the defendant is prohibited from doing, he commits a straightforward criminal offence. That straightforward criminal offence can be dealt with either on summary conviction by imprisonment, or by a fine or conviction on indictment. Instead of having four offences, as the Bill has, these amendments, in the framework which we are advancing, create the single offence of breaching the harassment order. It is at that point that criminality comes into it.

There is provision in the Bill as drafted for a statutory tort, a civil wrong. All that is unnecessary. If the courts want to develop a tort along those lines no doubt the courts can do so. If they wish to leave it to people to sue in the civil courts, let the courts develop a civil wrong of that kind and give damages and remedies within the civil courts. But litigation is so expensive and slow that it is not an answer to the specific problem that we seek to address in the Bill.

I put forward a framework of ready access to a remedy. It is a framework which does not instantly turn a person into a criminal but gives him one or two warnings about his conduct, identifies him, involves the

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police at an early stage, and enables him to check his conduct before he gets into the criminal courts and finds himself threatened with imprisonment.

Members of the Committee will be glad to hear that the remaining amendments are consequential and I do not propose today to address the Committee at length on them. Today we observe in the press the dreadful tragedy relating to Billie-Jo Jenkins which took place recently in London and which is put down to the possible acts of a stalker. It is a problem which is very real and close to us at this time. I ask Members of the Committee to address the issues with all the concern that I know they will feel. I beg to move.

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